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Unfair dismissal despite misconduct

An employee who was dismissed for serious misconduct after taking a photo of another staff member’s employment contract has been found to have been unfairly dismissed by the Fair Work Commission.

The misconduct

The employee, after months of querying his wage, took matters into his own hands when he photographed the remuneration details in an employment contract of a colleague who was employed in a similar position, in order to prove that he was being paid up to $7 per hour less than ‘his counterpart’.

The employer terminated his employment for photographing confidential information and distributing that photograph to a third employee ‘with the intention of causing harm to the business and/or relations between staff, or recklessly and with that being the probable result’.

The decision

The Commission considered that while there was a valid reason for dismissal, it did not reach the threshold of serious misconduct.

However, the dismissal was found unfair not because of the lack of valid reason, but because of the disproportionate effect the termination had upon the employee. As a 457 visa holder, the employee was forced to leave Australia when he lost his job as he was not able to secure alternative employment. Therefore, the dismissal was unfair for reasons of harshness.

However, in a strange turn of events, the Commission decided that neither reinstatement nor compensation would be appropriate as the employee had not suffered any financial loss due to a successful workers compensation claim.

The implications

We’ve seen plenty of cases recently where a valid reason for termination was overshadowed by a lack of procedural fairness, such as failing to provide an employee with prior warnings, a support person, or a chance to respond to the allegations.

This case demonstrates the third way in which a dismissal can be found unfair: if, despite an employer’s best efforts, it has a disproportionate impact upon the employee. This often relates to the employee’s personal circumstances, such as family responsibilities or financial circumstances, and is arguably the hardest to predict and avoid.

It is important that all factors are considered before terminating an employee. In this case, the business was aware that that the employee was reliant on his 457 visa to stay in the country, and should have factored that into its decision. While it certainly isn’t a get-out-of-jail-free card, such circumstances place a heavier burden on employers to ensure that a termination wouldn’t be too harsh a response to the misconduct of the employee.

For more information about unfair dismissal and the proper procedures for termination, clients should contact the HR Assured team. If you would like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.